Executive Summary: Key Legal and Evidentiary Issues

• A 1995 joint will made by Johannes and Daniela Siebert in Germany was challenged after Ms. Siebert's 2019 will purportedly revoked all prior testamentary dispositions.

• The chambers judge misunderstood the legal distinction between joint wills and mutual wills, treating them as synonymous when they are conceptually different.

• British Columbia law governs revocation, and under that law, only Mr. Siebert could cause his will to be revoked—Ms. Siebert's 2019 will could not revoke his testamentary dispositions.

• Fresh evidence regarding German law was rejected for failing Palmer criteria, as it could have been obtained with reasonable diligence and did not offer adequate evidentiary support.

• Interpretation of the phrase "our death" in the 1995 will was central to the dispute, with the Court of Appeal finding the judge's interpretation was not supported by the record.

• The presumption against intestacy favored interpreting the will to give it effect rather than rendering Mr. Siebert's estate intestate.

Background of the parties and the 1995 joint will

Johannes and Daniela Siebert were a married German couple who decided to move to Canada following a vacation in 1991 or 1992. They purchased a farm in Lister, British Columbia, in 1993 and made it their primary residence, while keeping a secondary residence in Lenggries, Germany. They had one child who had died while still an infant in 1990, and neither had children of other relationships. Mr. Siebert had no siblings and his parents were dead. Ms. Siebert's parents, Martin and Gertrud Steger, were living in Lenggries, Germany, and the Sieberts maintained a close relationship with them. On January 18, 1995, the Sieberts together made a will in Germany, handwritten by Daniela Siebert and signed by both of them, stating: "In case of our death, we, Daniela and Johannes Siebert, name Mr. Martin Steger and Ms. Gertrud Steger as universal heirs of our entire estate."

Ms. Siebert's 2019 will and subsequent deaths

Ms. Siebert was ill with cancer when she made a new handwritten will dated March 29, 2019, in Nelson, B.C., stating: "With this testament, I revoke any prior binding declarations in the form of a disposition of property on death. Only that which has been written here shall apply." She designated her husband Johannes Siebert as her sole heir. She died less than a month later. Mr. Siebert died accidentally in September 2022 without making a fresh will. Martin Steger has also died, leaving Gertrud Steger as the surviving named beneficiary under the 1995 will.

The dispute over Mr. Siebert's estate

The appellant, Reinhart Jean Aulinger, applied in the Supreme Court of British Columbia for a grant of administration with the 1995 will annexed, seeking an order that the will be proved in solemn form, on behalf of Gertrud Steger, who will inherit land in British Columbia under the 1995 will if it is admitted to probate. This was opposed by respondent Shawna Lee Oda, who claims that she entered into a spousal relationship with Mr. Siebert in the period prior to his death. Ms. Oda contended that the revocation of the joint will by Daniela Siebert revoked the entirety of the 1995 will and Johannes Siebert died intestate. The chambers judge found the 1995 will was formally valid and admissible to probate, but held it "had no force or effect following Daniela Siebert revoking all prior testamentary dispositions" by her 2019 will, concluding Mr. Siebert therefore died intestate.

The critical distinction between joint and mutual wills

The Court of Appeal identified that the chambers judge considered the terms "mutual will" and "joint will" to be synonymous, when in law they are conceptually different. According to Halsbury's Laws of England as adopted by Canadian courts, a joint will is a will made by two or more testators contained in a single document, duly executed by each testator, and disposing either of their separate properties or of their joint property. It is not, however, recognised as a single will—it is in effect two or more wills, and it operates on the death of each testator as that testator's will disposing of that testator's own separate property. Mutual wills are wills made by two or more testators that confer reciprocal benefits. The conceptual distinction between joint and mutual wills was not addressed in the Court below, and the judge received no assistance on the effect in law of the revocation of a joint will by the testator who dies first.

Interpretation of "our death" and the presumption against intestacy

The Court found there was ambiguity warranting consideration of the surrounding circumstances when the 1995 will was made. A notable feature of the 1995 will is that it provides only for the disposition of "our entire estate" in the event of "our death" and does not say what is to be done if one of the makers dies before the other. The reference to "our entire estate" suggests an assumption that the property of one would be inherited by the other in the interim, which would be the case for a childless married couple in British Columbia. Ms. Oda contended that "our death" refers only to the event of simultaneous death, but the Court found it implausible that the Sieberts would make a will contemplating only that unlikely contingency. The Court determined that what they wanted to address was the ultimate disposition of "our entire estate" after both were dead. Interpreting the will as proposed by Ms. Oda would deprive it of legal effect in all but exceptional circumstances. The effect of the judge's interpretation still gives rise to an intestacy that it is difficult to imagine Mr. Siebert would have wanted in 1995. The appellant's interpretation is supported by the presumption against an intestacy, which favours resolving an ambiguity in a will so as to avoid an intestacy.

Rejection of fresh evidence on German law

Ms. Oda sought to adduce fresh evidence consisting of a March 2024 report of a German court's ruling addressing the manner in which a joint will may be revoked under German law. The Court dismissed this application because it fails to satisfy two of the Palmer criteria. With the exercise of reasonable diligence, the proposed fresh evidence could have been obtained and tendered in the Court below, as the German court's ruling was available well in advance of the hearing. Moreover, the German court ruling does not offer adequate evidentiary support for the argument Ms. Oda wishes to advance, and the court cannot take judicial notice of provisions of the German Civil Code. Foreign law is proven through the testimony of a qualified expert.

The ruling and outcome

The Court of Appeal allowed the appeal and set aside paragraphs 2, 3 and 4 of the order under appeal. The Court held that the judge's interpretation of the 1995 will is palpably mistaken—it fails to approach the interpretive problem as a search for testamentary intent, does not have regard to the surrounding circumstances favouring the appellant's interpretation, fails to have regard to the presumption against an intestacy, and derives from a mistaken understanding of the legal nature of a joint will. The 1995 will was, in law, two wills: one made by Ms. Siebert, and the other by Mr. Siebert. Under British Columbia law, only Mr. Siebert could cause his will to be revoked pursuant to WESA, s. 55—Ms. Siebert could not. In making the 2019 will in which Mr. Siebert did not participate, Ms. Siebert revoked her 1995 will, but she did not revoke Mr. Siebert's 1995 will. It remained in force and came into effect upon his death in 2022. The Court pronounced for the force and validity of the last will of Johannes Karl Georg Siebert dated 18 January 1995 in solemn form of law, and ordered that a grant of administration with the will annexed be made to the appellant, if he is entitled to it. Gertrud Steger will inherit land in British Columbia under the 1995 will. No specific monetary amount was determined as the case concerned real property inheritance.